Njombe District Council vs Njombe Ludewa Makete Cooperative Union (Civil Case No 82 of 1991) [1999] TZHC 412 (27 August 1999)
Judgment
rw· -THE m:n.R :oom-LT OP' TANZAI'{[.A
AT rnBEY.A
.....,____GL..LL.i.
CIVIL . CASE NO I:> 8 2 OF 1991
NJOMBE DISTRICT COUNCIL ••••••••••••••PLAINTIFF
VERSUS
NJOMBE LUDEWA :MAKETE CO-OPERATIVE
UNI ON •• ; .............. I & ~ .................. DEF'E:NDAN.C
EX PARTE JUDGEMENT
---·-
< .. MWIPOPO, _J.-·
Njombe D_istrict Council. (NDC) filed a --~~-t against Njombe/
· :Mete/Ludewa Coope:r.ative Union (NJOLUMA) claiming for p_rod.uce
cess payment as per provisions of the NDO by law in GN. 679/1987
. · levied upon some produce bought and collected by the defendant/ .
{NJOLUMA) in Njomca District·Council's J territorial jurisdiction
~ I
. with a :.:,·:
for the seasons of 1987/88. total suit claim as per the Amended
which- /
plaint of 6/12/199o/ stood at 'Tshs3, 778, 679/70 be.-ing · the ·net
balance yet tmremitted from produce cess on maize, wheat., banana,
c9ffee, pyrethrum and rice; for the 1988/89 season the claimed
.- p,roduce cess yet unpaid was calculated at shs3,651,202/20 from
maize, beans, coffee, pyre thrum, wheat and sunflower.
For the 1989/90 the produce cess claims amounted to ·shs;2,
2, 284
1
985/10 from maize:- bA:n.R.. ,:-r-:f7':?c ~ pyre thrum, wheat, sunflower
and t obaoco •
. . ···. at
For ·the 1990/91 the produce cess yet unpaid atod/a total of
Tshs 2
1
547
1
8.36/40. ' ~
-·: .: _:. -r?i>_s/A~~~~e·:a:· w.sDe _the defendant in paras 31. 4 and 5
a ••-
• . . . .
- . . . . . . . .. - . . ,..._
. 2
contained in the Amended plaint on the ground that the. same was
not leviable upon the defendant who was a Secondary Society
only
but leviable ;to the :prim_ary societieso The view of this court
was already made .in th~ !}l;Ling of Hono Mwip'opo,' J~, of 9/10/97
oi ting the case of M,b.3ya High Oourt Q.!..C~ No~?/192~ Iringa
(unreported) in
District Counoil Vs. IMUCU iringa/Mufind.i Cooperative Union
1
which __ ,......, I
:. · . .. . quite pa_ya ble ..
Hon. Mchome, Jo held that such produce cess was ··/ .. oy the
thereby .
Cooperative Unions / se;b.ting ·up the· answer to this· quetion.
hold now
I too di that the NJOLUMA was·duty bound statutorily to ·pay
this produce cess.
In para
1
s 8 and 9 the defendant filed their own suit by way , .
of a cotmte.r claim of shs3,881;589/25 being produce cess already
paid by te defendant to the plaintiff allegeilly mistakenly. due
to the above mentioned defence that as a Union the defendant
was not req'-?-red.- t pay.any produce cess at all which statutory duty
fell upon the primary societies only 0 This defence has alre.ady
. up
been dismissecl :::-:apove for the Cooperative Union f:1.o.bd / as agents __
of primary societies or on their'ovvn right to buy and collect
produce and are bound to pay the produce ce ss on their .own right -
or on behalf of the primary societies. The counteI"-:-Claim therefore
is hereby dismissed ex parte with costs.
The main claim• of the plaintiff has been backed up, by te ·
C
affidavit of Nazareno Mpangala the Branch Accountant of the -
plai?-tiff who shod · the actual kgs. of crops bought and the
-.:•- .
-- : :cha.rga,pe ra.te ·o· produce cess per kgc of each tYPe of 9rop and
- .. - . - - -· - ..
the u1 timate .. o.ess due -to t2-2.9 .c.ouncil for the entire sp_an of
1987 - 1991 Jrears,,~~).-,.:--:ce arG atte1c2'.;--;:d to the pla:Lnt domuments ,
proving the . !::
5
s ar,·tualJ_y bought :. JY the defendant an,d the type of .Oi"
crops and total ·,v.-;.iight/ quantity in kgso
At one stag -the p.lain:tiff has sho'Y-11 that (in the 8th para
.. ·
of the affid.avi t) the defendant admitted liability
. ,:. : .
by ,his
l· , , .
letter with ref 0 No.NJM/USH/1/308 of 18/J/91 for the entire claim
.,, .
-: .' .
but merely raised a defence' that the Treasury had not yet reimbursed
them the claimed. amount of the produce cess for onward payment
to the plaintiff' If th.at 3wero' the true.position obtaining between
the defendant and the Treasury the defendant should have issued a
third party notice for The Treasury to be joined as a co--4efendant
or alternativell.ythey .still have a- right of claiming rebate from
the !l!reasury in future, if not yet done so up to now!
Otherwise, the claim is concicely exposed by the plaintiff
and proved by the affidavit and attached documents that there is
no alternative but to enter judgement for the plaintiff as per
their amended plaint to the total tune of shs.12,262,707/70
with a 10% p;ao interest from the 1992 year until today and
until wh.tch court interest of 7% p:a from until today until
the same decretal such is sntisfiedo
This suit has been won wi tt. nnsts.
" JUDGE
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27.8~99
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